# U.S. Department of Labor

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URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A728621c180c7493e

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

U.S. Department of Labor

Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

In the Matter of:
NAVEEN VUDHAMARI,
PROSECUTING PARTY,
v.

ARB CASE NO.

2019-0061

ALJ CASE NO.

2018-LCA-00022

DATE: July 30, 2020

ADVENT GLOBAL SOLUTIONS,
RESPONDENT.
Appearances:
For the Prosecuting Party:
Naveen Vudhamari; pro se; Himayathanagar, India
For the Respondent:
Kavitha Akula, Esq.; Akula & Associates, P.C.; Dallas, Texas
Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge;
James A. Haynes and Heather C. Leslie, Administrative Appeals Judges
ORDER OF REMAND
PER CURIAM. This case arises under the Immigration and Nationality Act
(INA), 8 U.S.C. §§ 1101-1537 (2014), and its implementing regulations at 20 C.F.R.
Part 655, Subparts H and I (2019). On May 17, 2019, a Department of Labor
Administrative Law Judge (ALJ) issued a Decision and Order Granting Summary
Decision (D. & O.), denying in part and granting in part a motion submitted by
Respondent Advent Global Systems to dismiss a complaint filed by Prosecuting
Party Naveen Vudhamari. For the following reasons, we reverse the ALJ’s rulings
and remand the case for further proceedings consistent with our decision.

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BACKGROUND
Advent is a company that provides information technology services. In
August 2015 it filed a Labor Condition Application (LCA) seeking to hire an H-1B
nonimmigrant worker to work as a systems analyst between August 5, 2015 and
August 5, 2018. On or about August 10, 2015, Vudhamari began working for Advent
in the Systems Analyst position identified in the LCA. After he began working at
Advent, Vudhamari submitted a WH-4 (Nonimmigrant Worker Information Form)
to the Department of Labor’s Wage and Hour Division. In this document he alleged
that Advent committed several violations, including failing to pay him the legal
wage pursuant to his H-1B status. Petition for Review, Exhibit (PX) 15 at 6.
Wage and Hour conducted an investigation and on June 19, 2018, the
Administrator concluded that Advent committed LCA violations related to
Vudhamari’s employment and ordered the company to pay Vudhamari $2,463.97 in
back wages. On June 27, 2018, Vudhamari appealed the Administrator’s
determinations and requested a hearing before the Office of Administrative Law
Judges (OALJ). On December 18, 2018, the ALJ ordered Vudhamari to “file a
Formal Complaint asserting the specific grounds upon which his claim is based, the
specific violations he alleges that Respondent committed, and the specific nature of
the relief he seeks in this matter.” On January 3, 2019, Vudhamari submitted a
Formal Complaint (Complaint) to the ALJ alleging various violations committed by
Advent, the Department of Labor, and the U.S. Citizenship and Immigration
Services.
On March 15, 2019, Advent filed a Motion to Dismiss (Motion) the Complaint
on the grounds that Vudhamari failed to state a claim upon which relief could be
granted. The ALJ ordered Vudhamari to respond to the Motion and informed him
that failure to respond would result in a grant of the Motion. On April 5, 2019,
Vudhamari filed a reply to the Motion with supporting exhibits and attachments. D.
& O. at 4.
The ALJ reviewed the Motion and concluded that Advent intended to file a
combined motion to dismiss and an alternative motion for summary decision
pursuant to the rules governing proceedings before OALJ. Id. at 4-5. On May 17,
2019, the ALJ issued a Decision and Order Granting Summary Decision. The ALJ
denied the portion of the Motion seeking to dismiss the Complaint for failure to

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state a claim upon which relief could be granted and granted the portion of the
Motion seeking summary decision. Vudhamari appealed the ALJ’s ruling on the
Motion to the Board.
JURISDICTION AND STANDARD OF REVIEW
The ARB has jurisdiction to review the ALJ’s decision pursuant to 20 C.F.R. §
655.845. See also Secretary’s Order No. 01-2020 (Delegation of Authority and
Assignment of Responsibility to the Administrative Review Board (Secretary’s
discretionary review of ARB decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020). The
ARB reviews de novo an ALJ’s orders on motions to dismiss and for summary
decision. Johnson v. The Wellpoint Cos., Inc., ARB No. 2011-0035, ALJ No. 2010SOX-00028 (ARB Feb. 25, 2013).
In considering a motion to dismiss for failure to state a claim, we accept the
non-movant’s factual allegations as true and draw all reasonable inferences in his
favor. Tyndall v. U.S. EPA, ARB No. 1996-0195, ALJ Nos. 1993-CAA-00006, 1995CAA-00005, slip op. at 2 (ARB June 14, 1996). In contrast, summary decision is
appropriate if the pleadings, affidavits, and other evidence show that there is no
genuine issue as to any material fact, and that the moving party is entitled to
prevail as a matter of law. 29 C.F.R. § 18.72(a); Franchini v. Argonne Nat’l Lab.,
ARB No. 2013-0081, ALJ No. 2009-ERA-00014, slip op. at 10 (ARB Sept. 28, 2015).
In reviewing such a motion, the evidence before the ALJ is viewed in the light most
favorable to the non-moving party, and he may not weigh the evidence or determine
the truth of the matter.
DISCUSSION
We agree with the ALJ’s conclusion that Vudhamari stated a claim upon
which relief could be granted by alleging that Advent underpaid his wages. D. & O.
at 5 (“Pursuant to the applicable regulations, an employer is obligated to pay its H1B employees the required wage rate for the entire period of authorized
employment. 20 C.F.R. § 655.731(a) ... Consequently, because the Prosecuting Party
has alleged Respondent did not pay him wages or underpaid his wages, the
Prosecuting Party has stated a claim upon which relief could be granted.”). And
Advent asserts in its Motion that it “has been and is willing to pay the back wages
owed to Mr. Vudhamari which was determined by the Department of Labor after a
thorough investigation.” Motion at 2.

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But the Complaint incorporates claims beyond the back pay award, and
Advent submitted exhibits in support of its assertion that it was entitled to
dismissal of the Complaint. Vudhamari also submitted additional documents in
support of his response to the Motion. Because the parties submitted evidence
outside the pleadings, it was proper for the ALJ to interpret the Motion as a request
for summary decision. Hukman v. U.S. Airways, Inc., ARB No. 2015-0054, ALJ No.
2015-AIR-00003, slip op at 6-7 (ARB July 13, 2017).
The ALJ informed Vudhamari of the consequences for failing to reply to the
Motion when it was presented as a motion to dismiss. See March 19, 2019 Order
Establishing Deadline for Prosecuting Party to File Reply to Respondent’s Motion to
Dismiss. But the ALJ did not inform Vudhamari that he was converting the Motion
to a motion for summary decision. Vudhamari is appearing pro se, and the ALJ
should have provided him with notice of the requirements for opposing a motion for
summary decision, in a form sufficiently understandable to apprise him of what was
required, along with the text of the rule governing summary decisions. See, e.g.,
Zavaleta v. Alaska Airlines, Inc., ARB No. 2015-0080, ALJ No. 2015-AIR-00016, slip
op. at 11-12 (ARB May 8, 2017); see also Timms v. Frank, 953 F.2d 281, 285 (7th Cir
1992) (“a short and plain statement in ordinary English” is appropriate because “the
need to answer a summary judgment motion with counter-affidavits is contrary to
lay intuition.”).
Accordingly, we direct the ALJ to provide Vudhamari with a notice containing:
(1) the text of the rule governing summary decisions before ALJs (i.e., 29 C.F.R. §
18.72), and (2) a short and plain statement that factual assertions in Advent’s
submissions will be taken as true unless he contradicts Advent with counteraffidavits or other documentary evidence. Although we express no opinion on the
merits of Vudhamari’s claims, we REVERSE the ALJ’s Decision and Order Granting
Summary Decision and REMAND the case for further proceedings consistent with
this opinion.
SO ORDERED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A728621c180c7493e. Public record. Not legal advice.